IN THE SUPREME COURT OF SEYCHELLES
Civil Appeal No: 17 of 2016
[2017] SCSC 128
MARY GERMAIN
Appellant
Versus
CREOLE TRAVEL SERVICES
Respondent
Heard:
Counsel: Mr. Boniface for the Appellant
Mr Pardiwalla for the Respondent
Delivered: 14th of February 2017
JUDGMENT
Seegobin Nunkoo J
[1] This is an appeal from a judgment of the Employment Appeal Tribunal dismissing an application for claim in respect of unjustified dismissal made by the appellant, one Marie Germain.
[2] Appellant was employed as a transport supervisor by the Respondent. In or around May 2013 her employment was terminated. She made an application to the Employment Tribunal dated 20 May 2013 claiming :
1. One month salary in lieu of notice
2. Salary until date of lawful termination
3. SR. 3000.00 being cost for legal fee Transportation fee, and Tribunal fee.
[3] The tribunal dismissed the applicant’s application.
[4] In its judgment the Tribunal set out to answer the two following questions:
Firstly, has it been proved, by way of evidence, that the applicants behaviour at her work place was such as claimed by the Respondent in the letter of termination dated 9th April 2013 or otherwise;
Secondly, on account of the evidence on record proving the allegations, was it justified for the Respondent to terminate the contract of employment of the applicant without notice.
[5] The Employment Tribunal in its judgment decided that the dismissal was justified and dismissed the application with costs.
[6] Aggrieved by that decision the Appellant has appealed to this Court on the following two grounds:
1. That the Employment Tribunal erred in not taking into account that there has been procedural impropriety in the termination of the contract of employment of the appellant in that section53 of the Employment Act 1995 was not adhered to by the Respondent before terminating the said contract of employment.
2.That the Employment Tribunal arrived at a finding that no reasonable tribunal could reach when it decided that the termination of the Appellants contract of employment was justified despite the evidence of the said Appellant being corroborated by numerous witnesses.
[7] The Appellant is now praying the appellate court for a judgment:
Reversing the order of the Employment Tribunal appealed against by ordering that the Appellant is paid the following: (1) one month’s salary in lieu of notice (2) salary until the date of lawful termination (3) SR. 3000.00 being cost of legal fees, transportation fee and tribunal fee.
[8] At the hearing learned counsel for the Appellant dropped the second ground and opted to rely only on the first ground. He submitted that it is trite law that almost in all employment cases there has to be an investigation before any action is taken against a worker. The worker must be given an opportunity to give his explanation, or, as counsel said, “his side of the story.”
[9] Counsel relied on Section 53 of the Employment Act which reads as follows:
No disciplinary measure shall be taken against a worker for a disciplinary offence unless there has been an investigation of the alleged offence or where the act or omission constituting the offence is self-evident unless the worker is given the opportunity of explaining the act or omission.
[10] Learned Counsel for Respondent argued that there was no need for any such investigation as Appellant had attended a number of meetings with her superiors where her shortcomings and misbehaviour at work were communicated to her and her explanations were heard.
[11] Learned Counsel referred the court to the same Section 53 which provides for an exception to the duty of the employer to go through an investigation; this is not needed where the act or omission complained of is self-evident. He emphasized the following “where the act or omission constituting the offence is self-evident, which then the need for investigation does not arise.”
[12] Learned Counsel further submitted that at the hearing before the tribunal it was not pleaded that the employer was in breach of section 53 for having failed to carry out an investigation.
[13] I agree with Counsels view that Section 53 not having been pleaded at the hearing before the tribunal cannot be relied upon now by the Appellant that is at appeal stage.
[14] See the case of Barclays Bank vs Joshi Moustache SCA 1/993 where it was said that a final appellate Court can allow a party to raise an issue that was not pleaded at trial only in exceptional circumstances and where there is no prejudice to the other party and the new issue must have merit on the facts.
[15] This court is also not prepared to interfere with the finding of facts arrived at by the Employment Tribunal.
[16] For the reasons set forth the appeal is dismissed. With costs.
Signed, dated and delivered at Ile du Port on 14th of February 2017.
Seegobin Nunkoo
Judge of the Supreme Court